J. A. Lamy Mfg. Co. v. Missouri Pac. Ry. Co.

• Decision Date: 17 January 1916
• Docket Number: No. 11785.,11785.
• Citation: 182 S.W. 131
• Parties: J. A. LAMY MFG. CO. v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

182 S.W. 131

J. A. LAMY MFG. CO. v. MISSOURI PAC. RY. CO.

No. 11785.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Action by J. A. Lamy Manufacturing Company against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. D. Corum and Edw. J. White, both of St. Louis, for appellant. Montgomery & Montgomery, of Sedalia, for respondent.

JOHNSON, J.

This is an action for damages for the failure of defendant, a common carrier, to deliver two shipments of merchandise received from plaintiff at Sedalia for transportation and delivery at Crowder, Mo., to the Crowder Stores Company and J. W. Carlisle, the respective consignees.

Each shipment is made the subject of a separate count in the petition. The first count alleges:

"That on the 28th day of July, 1913, it delivered to the defendant at its said station in the said city of Sedalia a shipment of goods, wares, and merchandise consisting of union suits, gloves, hose, pants, and shirts of the value of $179.15 for shipment and transportation to Crowder, Mo., and there to be delivered to the consignee, the Crowder Stores Company, for the proper consideration to be paid it by said consignee. That the defendant accepted said shipment and undertook said transportation. That thereupon it became and was the duty of the defendant to transport and deliver said goods with reasonable dispatch, and to deliver the same in good order and condition to said consignee. That the defendant failed to transport and deliver said goods to said consignee within a reasonable time and plaintiff was compelled to and did order the goods reshipped and delivered to it, which the defendant undertook to do, but that defendant failed to transport and deliver said goods back to plaintiff. That part of said goods were returned, but a large part thereof were never delivered, and that that portion which was delivered was greatly damaged and deteriorated in value, and plaintiff suffered great loss and damage, including the freight paid by it aggregating the sum of $150."

The allegations in the second count which deal with the shipment to Carlisle substantially are the same, with the exception that it is alleged that these goods were not delivered to plaintiff. The answer is a general denial. A jury was waived, and judgment was rendered for plaintiff on both counts. Defendant appealed.

On July 26, 1913, plaintiff, a merchant at Sedalia, delivered to defendant a case of merchandise of the value of $179.15 for transportation and delivery to the Crowder Stores Company at Crowder, a prepay station on the line of the St. Louis & San Francisco Railway Company, a connecting carrier, to which defendant delivered the case at St. Louis.

By a prepay station is meant one for which shipments are not received without payment of freight charges at the receiving station for the reason that no agent is kept at a prepay station. Defendant knew, but plaintiff did not know, that Crowder was such a station, and from the evidence of plaintiff it appears that it was the duty of defendant's agent at Sedalia to inform plaintiff of that fact and require the prepayment of the charges, but the agent failed to impart that information to plaintiff and accepted the shipment as one for which the transportation charges should be paid by the consignee at destination. Having no agent at Crowder to collect the expense bill, the San Francisco Company carried the case to Vanduser, the next station beyond Crowder, and mailed a notice to the consignee to call at that station and pay the charges and receive the goods. The consignee would not receive the goods at Vanduser, and after plaintiff consumed more than a year in a continous...